Monday, April 14, 2008

The Right to Remain Silent?

by Katherine Scardino

I have been reading about the bizarre situation involving two criminal defense attorneys (pictured left) who represented a man who admitted to his attorneys that he committed a crime for which another person was convicted. The innocent person, Alton Logan (pictured below left), is currently in prison and has been for the last twenty-five or so years. Back then, the man who actually committed the crime (below right) wrote out a statement, gave it to his attorneys, and instructed them to keep that document in a safe place. He did not grant them permission to disclose this information. Their client recently died. The attorneys believed that because of the attorney-client privilege they were bound to honor their client’s wishes and keep quiet for more than two decades.

The attorney-client privilege prevents a person’s attorney from disclosing any confidential communications "made for the purpose of facilitating the rendition of professional legal services to the client." In Texas, this is under our Texas Rules of Evidence, Rule 503(b)(1). This rule is subject to ethical considerations if violated; i.e., for an attorney, that means a lawsuit or a grievance, something that could affect your livelihood.

This is a narrow question - very tight boundaries: The attorneys know information that could potentially release an innocent person from prison but they are ethically and legally bound to keep it confidential. The attorney-client privilege is dissolved only upon the death of their client, which happened in this case to eventually provoke the disclosure by the two attorneys. What would you do in same or similar circumstances? Could your conscience support this knowledge for twenty-five years? Would you "leak" the information to a police officer or someone in the criminal justice system in the hopes that more investigation could be done? Should the lawyers have told the authorities as soon as they knew this information?

Before you answer, consider this exception to the privilege:

(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

So, in my mind, the question becomes - Is it a "fraud" to allow an innocent person to languish in prison for many years? I believe that it is. If the attorney is attempting to assuage his guilty conscience by divulging information that is clearly a "confidential communication," then this is the only exception that might, just might, apply. The exception may help the conscience of the poor soul who is bearing this burden of knowledge, but there would be no guarantee as to a legal result if the client sued him.

I, as a criminal defense attorney, do not believe I could "sit" on this information and let an innocent person remain incarcerated for a crime I knew he did not commit. I believe I would have to step forward and suffer the consequences, whatever they may be. I would justify this disclosure by claiming, at least in my own mind, that it was fraudulent to keep silent about my knowledge. This information would eat at my soul. I could not contain it.

What would you do? If you are a regular citizen, and you had information that would clear a man’s name, you would freely come forward. If you are an attorney, it isn’t that simple. Seriously, what would YOU do?


Leah said...

I read about this over the weekend and I am appalled.

I could never let an innocent person sit incarcerated while a guilty man walked free, so I would take whatever punishment I was given, but I would not keep silent. It is a travesty that these two attorney's were able to. I have to believe that while it may be an ethical violation among other things, certainly there would be a measure of forvigeness [for lack of a better term] on behalf of the justice system and society for taking the real murderer [that is what he was wrongly convicted of]off the streets. Not to mention that all these years the family of the deceased security guard, who harbored resentment, among other feelings, for the man that murdered their loved one, was betrayed by our system.

It would definitely be worth giving up my law license and practice, if that is what I had to do so that I could live with myself.

What I am really curious about is what was the purpose of getting the written confession?? It's like rubbing it in our faces.

katherine scardino said...

Leah: I could not agree with you more. Some of our "rules" seem stupid, but there really are legitimate reasons for them. Sometimes these rules just should not apply to out of the ordinary situations. And, I also agree that I would be willing to lose my law license before I would be able to remain silent.

katherine scardino said...

Leah: I noticed that you had a specific question about "why leave the confession?" I can only speculate - but perhaps the lawyers wanted it in writing so they would be able to disclose this in the event their client died - which he did.

A. said...

This really is a situation that would expose the true character of a defense atty.
Certainly there seems to be enough room within the exception to find a way to disclose such crucial information, and feel justified in doing so.
Yes, it would be a controversial risk, but if a defense atty truly does his job for the sake of the wrongly convicted, then he/she could find the justification here.

I would actually think that he/she'd welcome the risk to shed light on the issue and to make a point that people really are wrongly convicted.

I can't answer your question however, because I cannot imagine EVER being a defense attorney.

katherine scardino said...

Why could you never imagine being a defense attorney?

Leah said...

I understand why we have these rules and I also know that if we didn't have that particular rule, this guy most likey would not have ever wrote the confession. He'd have been a fool to.

Having all this conversation about defense attorney's and the justice system these past few days, I just have to ask you....because at some point in your career, you had to have to have defended someone that you knew or at least suspected was do you do it and how is it ok to lie to a court of law and jurors when you are presenting a case like that??

I am only asking a question here, and not trying to be a biach. But I just don't get it. I don't get a lot of prosecutors either. As a paralegal, I work for the State Legislature and specialize in Constitutional Law. While I have been out of the private sector and the criminal & litigation areas for more than a decade, I still keep up with it and I am more discourgaed everyday. And it is a primary reason I decided to go to Engineering School, rather than Law School. What I really believe is that our sociteial/juducial needs have superceeded the laws and constitution we currently have in place. We have ourgrown it. People have become so smart and educated that our system doesn't work the way it was intended to work anymore. Or at least a lot of the time. I see a lot of good people because of this and a lot bad people taking advantage of it.

Sorry about the venting. This isn't the forum for it but I think it is a sentiment shared by many.

katherine scardino said...

Leah: While I am dismayed that you feel the way you do, I am realistic enough to know that there are many citizens out there who agree with you. It is easy to sit back and criticize our system when we see so much crime happening almost in our back yard. Our children are kidnapped, raped and sometimes murdered. It's hard to talk about the "rights" of an accused person when our society sees so much damage humans do to other humans. But, you have studied Constitutional Law; you do understand the underpinnings of the concept that all of us are equal under the law. I do not for a second believe that our society has outgrown those concepts. You asked how I could represent a person who I may KNOW was guilty. I don't even have to know whether he is guilty or not. I take the facts of every case and assure that the police officers did their job legally - they did not beat him up to get a confession; they did not break down the door to his home and drag him out of bed; they did not "plant" drugs on him and then charge him. Then, I assure that the prosecutors follow the rules of evidence and procedure when trying the case. Those are the rights of an accused person. He does not have the right to a wrong verdict, regardless of what it is. Wrong verdict - would mean being based on illegally obtained evidence, coerced confessions, lying officers, prosecutors not following the rules of evidence. And, you know, USUALLY - but unfortunately not always - the jury comes to the right verdict in the end. One more thought - you disclaim the worth of criminal defense attorneys - who would represent you if you got stopped on the way home - you maybe had one beer, not intoxicated - but the officer smelled that beer - so you are arrested, taken downtown and booked. Who are you going to call to help you get out of a situation that you know is wrong? You would not call a civil attorney, a probate attorney, an insurance attorney....And, don't kid yourself. This happens daily.

Leah said...

I guess that is my point. Constitutional concepts are subjective to interpretation. And, as you know there are many more aspects of representing a criminal client than just making sure all his civil rights aren't violated by the police or justice system.

Knowing someone is guilty and proving it are two very different things. Which is why in this case an innocent man spent his life in prison while the guilty one walked free. Someone convinced 12 jurors of this, when in fact, it wasn't so. At what point would you say this man's civil rights were violated?? Legally, it wasn't until the day his confession was made public. Morally it was the day the confession was written and witnessed. Besides all that, tell me how this innocent man was convicted in the first place. Obviously whatever evidence and witnesses the prosecution used were wrong/false. Did they knowingly prosecute the wrong person? I guess that remains to be seen. But the bottom line is that an innocent man was prosecuted and that is what scares the hell out of society. Even his defense attorney couldn't save him. And he was innocent.

I don't discredit or disclaim the worth of defense attorneys. I have had to hire one a couple of times myself. But I never lie to them and I have never asked them to lie for me.

I understand what you are saying and how you represent your clients. But, I couldn't do it, at least beyond ensuring their rights aren't violated. And I am not saying all defense attorneys are liars or that they are asked to lie, but we both know that to diligently represent your client, this sometimes has to happen.

A. said...

I could never be a defense attorney because I simply could not defend the guilty. There must be times that you KNOW you are defending someone who has done something horrible, and caused great pain to others.

Additionally, I could never deem someone, who has had their life ripped apart by another, as the opposition, and depose them with hostility. Not in private, and not in a court of law. Not with the knowledge that I was working against them, and that what I was doing may very well be working against what a perpetrator ultimately deserves.

You say that everyone deserves a defense. I agree that this is the way that it is, but I disagree that it's what some people "deserve".

I recognize that there is a need for defense attorneys, but I don't think there'd be much I'd have in common with one.

A. said...

Hey Katherine, thanks for taking this, really.

I just love the fact that there's a place that I can actually say all this...and to an actual defense attorney.

Leah said...

LOL A...I was just thinking the same thing...thanks Katherine for letting me vent and not deleting all my posts.

TxMichelle said...

That is funny. I was just posting about this on another blog. Needless to say. I feel some sympathy for the two lawyers having to sit on this information. It is terrible that they could not under the law just come right out and say hey this guy here did it.

I think it is easy for us to say we would do it regardless of the consequences. You are asking someone to throw away their livelihood. These guys spent years getting their degree. They invested a part of themselves to the big machine called the judicial system. It is not like they could walk to the next restaurant and start working the fryolators.

It is awful that this innocent man sat in prison.

Lets face it though, the real murderer knew what he was doing. He told them knowing they couldn't tell anyone else. Besides they did ask him if he would allow them to release the information based on the fact he was going to get the death penalty. He agreed at that point because he thought he would die. When it was changed to life in prison he still told them that he didn't want it released until he dies.
Sounds to me like this man was a serious piece of work. I think he savored the fact that an innocent man was in prison for his crime. I think it was his ultimate F You to society and the machine.

JIm said...

This is no more of a controversy than arguing whether or not
water-boarding is torture. Water boarding is torture and permitting a
potentially innocent man to go to prison in blind adherance to a rule
of confidentially is a classic example of form over substance.

Years ago in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35
L.Ed.2d 297 (1973) a civil rights activist was charge with murdering a
police officer. Another person admitted committing the offense but
Defense lawyers were not permitted to call that person as a witness
because Mississippi, as did most states, had a voucher rule that
prohibited impeachment of their own witnesses except in very limited
circumstances. The Supreme Court ruled that the voucher rule had to
give way to the Due Process Clause of the Fourteenth Amendment.

The same is true here. Assuming that the attorney-client privilege
would prohibit disclose of this information, due process would require
it's disclosure. Additionally, the fraud exception to the attorney
client privilege would also permit its disclosure. A lawyer is an
officer of the court and to secrete this information would perpetuate
a fraud upon the court.

This is no more of a dilemma than debating whether to terminate a
marriage by divorce or murder. Water boarding is torture. Hiding
critical evidence under the attorney client privilege is a fraud and
violates due process, and .357 murder will get you on the pages of
Women in Crime Ink as well as in jail.

katherine scardino said...

Leah and "A": I cannot talk about why this innocent person was convicted. I just do not know. And, regarding your ability to "vent" about defense attorneys -I can tell you that this is not the first time those of us in our profession have heard this, so no problem. I wish I could explain better, though, how important I consider my job is for you, as a citizen, as well as for a client.

katherine scardino said...

Jim: I could not agree with you more. There would be no way in hell I could sit silent for all that time knowing that I had information that may affect this man's life. I did not do any major research in the lawbooks on this issue, and appreciate your citation. I agree that this situation screams out "fraud on the court" by remaining silent. Good post.

A. said...

Thanks for the clarifying this situation so eloquently Jim.

It certainly helps expose the two defense attorney's in the above photo's, for what they're really all about.
Which is obviously NOT justice.

Nikki said...

Actually, in another article that I read (very long and detailed) both attorneys tried everything they could to allow for this confession to be made public. They consulted other attorney's, judge’s, the bar, etc. They did not keep this secret willingly. They were quite diligent in trying to find a way around the attorney/client privilege. One other thing that we need to remember is that this was 20 something years ago. Things were a little different during that time, just as interpretation of laws were different.